Michael Simaan

The Plaintiffs brought a motion for leave to amend their Statement of Claim to add six new corporate and individual defendants (the "Proposed Defendants") and to advance claims for tracing remedies, unjust enrichment, and conversion.

The Proposed Defendants opposed the motion, arguing that the new claims were statute-barred by the Limitations Act, asserting that the Plaintiffs had actual knowledge or ought to have discovered the claims earlier.

The court found that the Plaintiffs did not have actual knowledge until receiving a second forensic report and that their diligence in waiting for this report was reasonable, thereby raising triable issues of fact and credibility regarding discoverability.

The court also determined that granting the amendments would not cause actual, non-compensable prejudice to the Proposed Defendants.

Leave to amend was granted, with the Original Defendants permitted to plead limitations defences.

This endorsement addresses multiple motions in a complex civil litigation involving a main action, a counterclaim, and a second action.

The Plaintiffs in the main action moved to extend time for trial, enforce a settlement dismissing their claim against one defendant (Rita Rajkumar), and strike Rita Rajkumar's counterclaim.

Separately, a plaintiff in the second action (15263851 Ontario Inc.) moved to join its action to the main action.

The court granted the extension of time and enforced the settlement.

However, the motion to strike the counterclaim was denied, as a counterclaim is a separate cause of action not dependent on the main claim's disposition.

The court also granted the motion to consolidate the second action with the main action, including the counterclaim, finding the issues interwoven and consolidation necessary to avoid inconsistent verdicts and multiplicity of proceedings.

The appellant appealed a Master's decision staying its Ontario action on the basis that Nova Scotia was the clearly more appropriate forum (forum non conveniens).

The appellant argued the Master erred by ignoring a scheduled summary judgment motion, misconstruing a scheduling order, and conflating jurisdiction simpliciter with forum non conveniens.

The Divisional Court dismissed the appeal, finding the Master made no errors of law or palpable and overriding errors of fact in his holistic assessment of the connecting factors.

The plaintiffs commenced an action for payment under a Cost Sharing Agreement 11 years after the defendant terminated its involvement.

The plaintiffs brought a motion to stay their own action in favour of arbitration, while the defendant brought a motion for summary judgment to dismiss the action as statute-barred.

The court dismissed the plaintiffs' motion, finding they could not stay their own proceeding under the Arbitration Act or the Courts of Justice Act.

The court granted the defendant's motion for summary judgment, holding that the action was statute-barred by the two-year limitation period and that the plaintiffs were estopped by conduct and laches.

The appellant condominium corporation appealed a judgment dismissing its claim that the disclosure statement was false, deceptive, or misleading regarding the disclosure of parking lease obligations.

The Court of Appeal found no error in the application judge's conclusion that sufficient information was included in the disclosure statement and that it was not false, deceptive, or misleading.

The appeal was dismissed with costs awarded to the respondent.

The appellant sought specific performance of an agreement of purchase and sale for a mixed commercial/residential property in Port Perry.

The agreement contained a mortgage assumption condition requiring approval from the mortgagee, Alterna Savings, on terms acceptable to the buyer.

The application judge dismissed the application, finding the condition precedent had not been satisfied because the buyer failed to formally accept Alterna's approval by signing and returning the approval letter before the deadline.

The Court of Appeal allowed the appeal, holding that the condition precedent was satisfied when Alterna sent its approval letter, and that formal execution was not required.

The court ordered specific performance subject to Alterna renewing its approval on substantially similar terms.

This endorsement addresses costs following the dismissal of a negligence claim brought by the plaintiff against his former solicitor.

The defendant, having successfully defended the claim, sought costs on a partial indemnity scale.

The plaintiff failed to submit any costs submissions.

The court awarded the defendant partial indemnity costs, fixed at $152,851.50, inclusive of fees, taxes, and disbursements, payable within 60 days.

The court found the amount reasonable, considering the complexity of the solicitor's negligence claim, the serious allegations of fraud made against the defendant, the plaintiff's unrealistic expectations, and his failure to cooperate during litigation.

The appellant, Lease Administration Corporation (LAC), appealed an order from Master McGraw granting the defendants' motion for security for costs.

The appeal raised questions regarding the standard of review for a Master's decision, whether factual findings from an interim motion are binding, and the Master's appreciation of the merits of LAC's claim, including the ability of a co-plaintiff to satisfy a costs award.

The court dismissed the appeal, affirming that the Master applied correct legal principles and made reasonable factual findings.

It clarified that interim findings are not binding and that co-plaintiffs' claims must be sufficiently similar to rely on one's ability to pay costs for the other, requiring evidentiary support for such ability.

The court-appointed receiver, Grant Thornton Limited, brought a motion to disallow approximately $105.5 million in claims made by companies owned or controlled by Enzo Mizzi (the "Claimants") against the Silverfern Secured Mortgage Fund and GTA Private Capital Income Fund (the "Mortgage Investment Funds").

The Claimants alleged damages for loss of profit due to the Mortgage Investment Funds' failure to advance loan amounts and for costs of development services.

The court determined that the motion should proceed summarily, with the onus on the Claimants to prove the Receiver made an error of law or palpable and overriding error of fact.

The court found no evidence that the Mortgage Investment Funds were parties to the loan agreements or had an obligation to advance funds, nor any agreement to pay for development costs.

Consequently, all disputed claims were disallowed.

The Receiver for the Paramount Group sought an order to appoint itself as receiver over Virk Hospitality Corp.'s assets due to alleged defaults on a $21 million loan.

The court found Virk in default for failing to repay the loan on its two-year maturity date, breaching a postponement agreement by misdirecting funds, and failing to pay property taxes.

The court granted the motion, finding it just and convenient to appoint the Receiver over Virk's property, assets, and undertakings.

Manorgate, a residential home builder, retained Kirkor, an architectural consulting firm, to provide design services for a construction project.

After the City of Toronto requested a higher density development, the parties entered into a second agreement for a larger project.

Manorgate alleged that Kirkor made a negligent misrepresentation regarding the cost per square foot of the larger project, which turned out to be significantly higher than represented, rendering the project financially unviable.

Kirkor moved for summary judgment, relying on an Entire Agreement Clause in the second agreement that precluded reliance on pre-contractual representations.

The motion judge granted summary judgment, finding that the second agreement was a separate contract and that the Entire Agreement Clause excluded the alleged misrepresentation.

Manorgate appealed, arguing the motion judge erred in giving effect to the Entire Agreement Clause.

The Court of Appeal upheld the motion judge's decision, finding no extricable error of law and affirming that the Entire Agreement Clause was broad enough to exclude the alleged misrepresentation.

The plaintiff employee brought a motion for summary judgment claiming he was terminated without cause with 72 weeks remaining on a fixed-term employment contract.

He sought liquidated damages for the balance of the term, while leaving alternative claims regarding the validity of the termination clause for trial if unsuccessful.

The court dismissed the motion, finding that partial summary judgment was inappropriate in these circumstances.

Applying the principles from Butera and Hryniak, the court held that bifurcating the issues risked inconsistent findings at trial and would not serve the goals of proportionality, timeliness, and affordability.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' claims for damages arising from construction on an adjacent property and a failed retaining wall, or alternatively, to transfer the action to Small Claims Court.

The plaintiffs claimed damages for interference with their home's use and enjoyment, including punitive and aggravated damages.

The court dismissed the defendants' motion, finding that genuine issues requiring a trial existed, particularly concerning punitive damages and the complex nature of the crossclaims.

The court emphasized that partial summary judgment is a "rare procedure" and that the motion did not meet the objectives of proportionality, timeliness, and affordability as outlined in *Hryniak* and *Butera*.

Following a trial judgment where the plaintiff was awarded $76,275 in a breach of contract action originally claiming $250,000, the court determined the quantum of costs.

The plaintiff sought approximately $78,000, while the defendant argued for a 50% reduction based on the judgment falling within the simplified rules limit.

The court rejected both the plaintiff's claim for substantial indemnity and the defendant's request for a 50% reduction, but factored the late abandonment of the consequential damages claim into the award.

Costs were fixed at $55,000 all-inclusive.

The plaintiff purchased an edge banding machine from the defendant for its cabinetry business.

The machine failed to perform its more sophisticated functions, such as rounding, which the court found to be a breach of implicit terms of the contract.

However, because the plaintiff had accepted the goods under the Sale of Goods Act, the breach of condition was treated as a breach of warranty.

The court found the plaintiff failed to fully mitigate its damages by not taking reasonable steps to sell the machine.

Damages were awarded to the plaintiff for 50% of the contract price plus HST, totaling $76,275.

The sellers appealed an order directing the release of a $50,000 deposit to the purchaser after a failed commercial real estate transaction.

The sellers argued the purchaser committed an anticipatory breach, relieving them of the obligation to tender.

The Divisional Court dismissed the appeal, upholding the application judge's finding that ongoing negotiations to extend the closing date negated any repudiation.

Because there was no accepted repudiation, the sellers were required to tender to enforce the agreement, which they failed to do.

The purchaser was therefore entitled to the return of its deposit.

The plaintiff, an experienced real estate agent, sued his former solicitor for professional negligence arising from the purchase of several properties and subsequent legal services.

The plaintiff alleged the solicitor failed to advise him of a 1995 by-law registered on title that restricted development.

The court dismissed the action, finding that the plaintiff was a sophisticated purchaser who instructed the solicitor not to conduct detailed title searches to save costs.

Furthermore, the plaintiff failed to call expert evidence to establish the standard of care, failed to prove causation as his inability to develop the properties was due to financial constraints, and failed to adequately prove his damages.

The plaintiffs sued the defendant architectural firm for negligent misrepresentation regarding the construction costs of a stacked townhouse project.

The defendant brought a motion for summary judgment, arguing that the 'entire agreement' exclusion clause in their contract precluded the plaintiffs from suing based on pre-contractual representations.

The court found that the exclusion clause applied to the alleged misrepresentations and that it was not unconscionable to enforce it.

The court granted summary judgment and dismissed the action.

The plaintiffs brought a motion for summary judgment to recover amounts allegedly owing on eighteen loans advanced to the defendants between 1990 and 1995.

The defendants raised several issues, including whether the demand loans were converted to shareholder advances, disputes over repayment amounts and allocations, and limitation period defences.

The court dismissed the motion, finding that the conflicting evidence, particularly regarding the characterization of the loans and the credibility of the parties, created genuine issues requiring a trial that could not be resolved using the fact-finding powers under Rule 20.

The moving party plaintiffs brought a motion to strike the responding party defendants' late-filed affidavit on a summary judgment motion.

The defendants had breached two court-ordered timetables and delivered their responding record seven months late, frustrating the plaintiffs' right to cross-examine.

The court declined to strike the affidavit, prioritizing the determination of the summary judgment motion on its merits with a full evidentiary record.

Instead, the court adjourned the summary judgment motion and imposed a strict timetable for cross-examinations and factum delivery, awarding costs of the motion to the plaintiffs.